Cuskic v. Canada (Minister of Citizenship and Immigration), (1997) 130 F.T.R. 232 (TD)

• Judge: Rothstein, J.
• Court: Federal Court (Canada)
• Case Date: May 06, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 130 F.T.R. 232 (TD)

Cuskic v. Can. (M.C.I.) (1997), 130 F.T.R. 232 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. MY.045

Frank Mefret Cuskic (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-29-97)

Indexed As: Cuskic v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Rothstein, J.

May 7, 1997.

Summary:

Cuskic was incarcerated for two years less a day for unlawful confinement and sexual assault. After his prison term he was subject to two years' probation. The Minister of Citizenship and Immigration issued a removal order. Cuskic applied to quash the removal order on the ground that it violated the probation order.

The Federal Court of Canada, Trial Division, quashed the Direction to Report, but declined to make any other direction. The court certified for the Court of Appeal the question of whether the execution of a removal order against a person subject to a probation order contravenes s. 50(1)(a) of the Immigration Act.

Aliens - Topic 1798

Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Execution precluded where another judicial order would be violated - Cuskic was on two years' probation after serving a sentence of two years less a day for forcible confinement and sexual assault - Cuskic was ordered deported - The Federal Court of Canada, Trial Division, held that execution of the deportation order contravened the probation order under s. 50(1)(a) of the Immigration Act - However, the court declined to order Cuskic returned to Canada to complete his probation - To prevent execution of a deportation order contravening a probation order, the Minister could seek changes in the probation order under s. 732.2 of the Criminal Code.

Cases Noticed:

Williams v. Minister of Employment and Immigration, [1984] 2 F.C. 269 (T.D.), refd to. [para. 5].

Wood v. Minister of Employment and Immigration (1986), 2 F.T.R. 58 (T.D.), refd to. [para. 5].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 732.2(3)(a) [para. 11].

Immigration Act, R.S.C. 1985, c. I-2, sect. 50 [para. 1].

Counsel:

Lorne Waldman, for the applicant;

Kathryn Hucal, for the respondent.

Solicitors of Record:

Lorne Waldman, Toronto, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto and Ottawa, Ontario, on April 30 and May 6, 1997, before Rothstein, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on May 7, 1997.